On December 18, 2023, the British Columbia Court of Appeal rendered its decision in Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173, 2023 BCCA 473 (“Giacomini Consulting”), which revised the test to have a court proceeding dismissed for “want of prosecution”. In a five-panel decision, the Court of Appeal determined that prejudice to the defendant is now no longer a pre-requisite to dismissal.
Criticism of the Previous Test
In an application for want of prosecution, the defendant applies to the court seeking dismissal of the proceeding because the plaintiff failed to pursue the proceeding for a substantial amount of time.
Before the decision in Giacomini Consulting, the test for dismissal for want of prosecution required the defendant to show whether the delay caused, or was likely to cause, serious prejudice to the defendant in presenting a defence if the matter went to trial. This previous test was subject to criticism because the requirement that a defendant prove serious prejudice created a “culture of complacency” towards delay in the justice system. In essence, plaintiffs had “a reasonable degree of confidence that they [would] not risk the “Draconian” remedy of an order dismissing their action for want of prosecution” (at para 52).
The Revised Test for Want of Prosecution
Recognizing that the law was due for a revision, the Court of Appeal determined that the previous test unduly focused on prejudice to the defendant at the expense of the broader impacts of delay on defendants and the justice system generally.
The Court of Appeal therefore revised the test to the following:
- Has the defendant established that the plaintiff’s delay in prosecuting the action is inordinate?
- Is the plaintiff’s delay inexcusable?
- If both of the above are answered in the affirmative, is it in the interests of justice for the action to continue?
Under the third element of the revised test, the Court of Appeal adopted a non-exhaustive list of factors that are relevant in the assessment of the interests of justice, including:
- the prejudice the defendant will suffer defending the case at trial;
- the length of the delay;
- the stage of the litigation;
- the impact of the delay on the defendant’s professional, business, or personal interests;
- the context in which the delay occurred, in particular whether the plaintiff delayed in the face of pressure by the defendant to proceed;
- the reasons offered for the delay;
- the role of counsel in causing the delay;
- the public interest in having cases that are of genuine public importance heard on their merits; and
- the merits of the action.
Takeaway
While the test for want of prosecution has been somewhat relaxed to better balance the considerations of the interests of defendants and the justice system as a whole, the Court of Appeal cautioned that the revised test is not an invitation for defendants to bring applications for want of prosecution as a matter of routine. Defendants should be cautious to ensure that the interests of justice lay in their favour before applying to dismiss a proceeding for want of prosecution.
If you have any questions about how the revised test applies to your particular circumstances, please contact your Harris lawyer.
